The Protection of Constitutional Identity in the Case Law of the Constitutional Courts of Romania and Hungary – Comparative Analysis

Protection of constitutional identity in light of the jurisprudence of the Constitutional Court of the Republic of Poland – a comparative study

One of the most crucial issues in the European Union arises in the relationship between its law and national constitutions. This issue has emerged as one of the breaking points of European integration, which could shape the future development of the EU and the integration process in the years to come. Although the Romanian Constitution recognises the primacy of EU law over national law (in Article 148 paragraph (2)), the case law of the Constitutional Court of Romania reflects that this primacy is far from absolute, since the Constitutional Court interpreted that EU law has no primacy over provisions that form the Romanian constitutional identity. Moreover, during the past few years the Court of Justice of the European Union opened a new area of interpretation of EU law, namely its primacy over the decisions of the national constitutional courts. This issue was first raised in relation to Romania and provoked fierce protest from the Constitutional Court. In the following contribution, I intend to analyse these cases and reflect on the judicial dialogue between the Constitutional Court of Romania and the Court of Justice of the European Union.

Identity, as it seems, is being searched for all over the place. The changes of the Russian constitution of 2020 excel with an abundance of regulations of elements of the collective identity of the Russian society, elements that as it seems are striving for a renaissance of the traditional Russian/Soviet society. Even earlier the concept of constitutional identity had become, in the last 10 years, very popular in the judicial practice of the European constitutional courts. The national constitutional courts use the topos of constitutional identity to fight off, as they see it, improper intrusion of international law into their national legal systems, of the EU law as well as of the European Convention of Human Rights as interpreted by the European Court of Human Rights. Functionally this is an equivalent of the amendments of the Russian constitution mentioned above. A more thorough analysis shows, that the reference to constitutional identity by the constitutional courts and the search for its possible content sometimes really touches upon very basic questions, but very often just creates a nontransparent veil, with which to hide the true reasons of the decision. The analysis also shows that constitutional identity is a superfluous concept: Constitutions are enabled to fight off improper intrusion of international law into the national legal system without referring to some nebulous constitutional identity. The European Court of Justice and the European Court of Human Rights are confronted with the opposite problem: How much homogeneity and how much integration may they impose upon the respective member-states? But this has very little in common with the constitutional identity that the national constitutional courts are so happy to refer to. The reasoning with constitutional identity is doubtful for other reasons as well. The reference to some “identity” — and in the follow-up to some constitutional identity — induces the addressee to think that this is a scientific and, in consequence, a not disputed concept, which implies the impossibility of the given social actor or institution to change. Sociological and psychological theories of individual and collective identity, on the contrary, consider identity as the pliable and changeable result of an interaction, in which the self-perception of the given social actor — be it an individual or a collective — and the expectations of other social actors towards him or her are melted into his/her negotiated and situational identity. This identity will be created anew in every new social interaction. In consequence there are a lot of good and weighty reasons, for constitutional courts and constitutional scholars, to refrain from the use of “constitutional identity” as a legal/constitutional concept. As far as the regulation of (traditional) elements of collective identity in constitutions is concerned, this is an intrusion of the state or the ruling elites into the interactive self-definition of society and, as the author thinks, the try to slow down the process of modernization of the Russian society.

The article explores the main problems of the application by the national courts of the case law of the European Court of Human Rights as a source of law. Analyzing the rules of the law and examining the views of the Supreme Court have highlighted the problematic issues of the obligation to apply the case law of the European Court of Human Rights to national courts as a source of law. The researchers' positions on the obligation of national courts to apply the case law of the European Court of Human Rights in cases against other states are examined and the importance of the application of the case law of the European Court of Human Rights is highlighted. Analyzing the views of scholars and experts, we have proposed ways to address the issues of the binding application of the case law of the European Court of Human Rights by reviewing the plenary sessions of high courts. The problems of the application of the case law of the European Court of Human Rights by national courts, such as the selective application of the case law of the Court, references to general principles and interpretations, ignoring the conditions of their application, absolutization of the binding position of the Court, application of the decisions of the Court by analogy, reference to the practice Court in the presence of clear and consistent provisions of national law, etc. The following ways of solving these problems are proposed: 1) revising the concept and content of the Law of Ukraine "On the implementation of decisions and application of the practice of the European Court of Human Rights" and amending the legislation in order to bring it in line with the provisions of the new procedural legislation and modern ideas of theorists and practitioners about the legal nature of decisions The European Court of Human Rights; 2) preparing a resolution of the Plenum of the Supreme Court on the application of the Convention and the case-law of the Court, which should be based on a thorough analysis of the shortcomings and peculiarities of the case-law of the national courts. The problematic issues of the application of the case law of the European Court of Human Rights in the absence of official translations of the Court's decisions are examined. Analyzing the views of scholars and experts, we have proposed ways to solve these problems by creating a single electronic database that will contain official translations of Court decisions in the Ukrainian language that will ensure their accessibility and dissemination.

Due to the resourceful case law of the Lithuanian Constitutional Court and the doctrinal attitudes of its justices, during the most recent decades in the Lithuanian legal discourse, the opinion has been established that the constitutional law is the true foundation of the legal system, whereas the civil law is merely an ordinary branch of Law fully determined by the former. Even more – the acknowledgment that the Constitution is a main source of the civil law was followed by the denial of the civil law rules to be a source of the constitutional law and any reverse effects. This approach, which has become dogmatic in Lithuania, is understood as a consequential result of the constitutionalisation of the civil law. However, more detailed theoretical analysis, presented in this article, on the relationship between the constitutional law and the civil law as well as the case law of the Constitutional Court involving the application of the civil law rules in a constitutional adjudication denies such simplistic understanding. The relationship between the branches of law in question seems to be much more subtle and complex than judging superficially from the perspective of legal stratification into the constitutional law and the ordinary law. Ironically, the understanding proposed by constitutionalists where the constitutional law is a higher law to which the civil law is fully subordinated provokes a legal scholar to proceed further and discover signs of the formation of the private constitutional law. This, in turn, demands new reflection on the relationship between the constitutional law and the civil law. Hence, in the present article, by applying functional, systemic and comparative analysis, and by taking into account the case law of the Constitutional Court, the author seeks to find out the relationship between the constitutional law and the civil law which is fundamental for every legal system.

Individual Constitutional Complaint in Lithuania: Conception and the Legal Issues This article presents the concept of individual constitutional complaint and its fundamental conditions as well as the basic provisions for its development in Lithuania. The article presents currently applicable fundamental constitutional provisions which define the subjects who may refer to the Constitutional Court of the Republic of Lithuania regarding compliance of the legal act with the Constitution, and the grounds for submission of such complaint. The doctrine of the individual constitutional complaint is defined by the author on the basis of case law of Lithuanian Constitutional Court. The author presents several examples concerning with this topic; the author discuses fundamental provisions related to the issue of individual constitutional complaint which has been approved as a new conception by the Seimas (the Parliament). The following provisions are established by the Constitution and the case law of the Constitutional Court of the Republic of Lithuania: the person whose constitutional rights or freedoms are violated shall have the right to apply to the court, the right to apply to the court is an absolute one, the Constitutional Court - a judicial institution, the Constitution is a directly applicable act, everyone may defend his or her rights by invoking the Constitution . These provisions are provided in the conclusions of the article by defining their constitutional nature. This situation allows debate about the importance of the individual constitutional complaint. And the debates raise the issue of the fundamental premises of this complaint.

This article examines the relationship among national constitutions, constitutional courts, and the primacy of Community Law in connection with four Member States (Germany, France, Italy, and Austria). It starts with the question of whether national constitutions contain a European Union (EU) clause and explicitly provide for the primacy of Community Law. It examines whether any constitutional restriction or reservation has been elaborated in the case law of constitutional courts, and the extent to which the constitutional courts examined can exercise control indirectly over cases of conformity of EU legislative acts with constitutions or cases of misuse of powers (ultra vires acts). The constitutions examined can be considered uniform in that they contain references to the individual Member States’ relationships with the EU and create the possibility of restricting their competence or sovereignty. However, they do not declare the principle of the primacy of Community Law. As a consequence, the constitutional courts of Member States play a key role in the interpretation of the principle of the primacy of Community Law, including the formulation of constitutional requirements and counterbalances in connection with the enforcement of the principle. A reference to constitutional identity appears in the case law of recent decades, the elements of which are elaborated on and filled with more or less specific content by the constitutional courts on a case-by-case basis. In the event of a possible violation of constitutional identity or principles with unconditional effectiveness, some constitutional courts exclude the possibility of Community Law being invoked against the constitution of a Member State, but at least on a case-by-case basis, they maintain the possibility of inapplicability or of creating compatibility. In the latter respect, the article also addresses the limited nature of the powers of constitutional courts to examine the compatibility of EU Treaties and their amendments with the constitution of a Member State (see ex-ante or ex-post review, procedural or substantive examination).

The latest trend in modern European constitutionalism is the issue of constitutional identity. Constitutional courts, which are the embodiment not only of the protection of the Constitution, but also of the limitation of power, are influential subjects of assessing the country’s international obligations and their implementation in national legislation. The purpose of the article is to analyze the constitutional identity in the argumentation of decisions of constitutional courts.
 The research method is a comparative legal analysis of the practice of constitutional review bodies in order to assess the expression of the concept of respect for national identity, which has become a condition and principle of legal integration in the European region. In addition, empirical analysis of decisions of constitutional courts was used. Using the system-structural method, the doctrine of «constitutional boundaries» as a component of constitutional identity is analyzed.
 It is justified that the concept of «identity» appeared and began to be actively used by European constitutional courts to justify decisions related to the processes of European integration and the expansion of the influence of supranational institutions of international organizations, including the European Union. It is proved that the decisions of constitutional courts should be based on national legal values, taking into account international practice and the principle of the supremacy of the Constitution. At the same time, national courts must take into account the country’s international obligations when making decisions. In today’s world, constitutional courts cooperate with the courts of international organizations, which form a common case law in the member states, in particular on the interpretation of human rights. This is manifested in the citation by constitutional courts in their acts of decisions of supranational judicial bodies. It should also be noted that the constitutional court may be guided by the positions of international courts in forming its legal position, but according to the doctrine of judicial discretion, the national court is free to assess the circumstances of the case and it is best acquainted with national features and specifics of national law.
 The analysis of the decisions of the bodies of constitutional proceedings, which used the concept of constitutional identity, gave grounds to claim that the courts in their practice in their interpretation appealed to different arguments depending on the specifics of the case. For example, in formulating the doctrine of constitutional boundaries, the Constitutional Court of Italy, in substantiating its decision, used at the same time an argument by analogy, an argument of agreement, an argument of general principles. The Federal Constitutional Court of Germany in its decision in the case of the Maastricht Treaty resorted to naturalistic and systemic arguments.
 It is concluded that constitutional identity is a system of interpretive arguments used by constitutional courts to substantiate decisions that verify compliance with the national specifics of constitutional norms. Of course, this applies to the categories of so-called «difficult cases», for the argumentation of which requires a system of strong arguments.

The article examines the interrelationship between the constitutional identity of Lithuania and human rights protection. It is maintained that this interrelationship is apparent through two key aspects. First and foremost, respect for innate human rights in itself constitutes an inseparable part of the Lithuanian constitutional identity. Although the Constitutional Court has not so far directly expressed its position concerning the Lithuanian constitutional identity, the category of fundamental constitutional values, singled out by the Constitutional Court in its decision of 19 December 2012 and ruling of 24 January 2014, is very important in this respect. This category comprises values consolidated in Articles 1 and 18 of the Constitution, such as the independence of the state, democracy, the republican form of government, and the innate nature of human rights and freedoms. These values are indivisible from the Lithuanian constitutional identity, since creating and fostering an independent and democratic state that respects innate human rights is a Lithuanian historical and constitutional tradition. This tradition derives from the fundamental acts of the independence of the state, i.e. the Act of Independence of 16 February of 1918, the Declaration of the Council of the Movement of the Struggle for Freedom of Lithuania, which was adopted in 1949 at the time of the occupation, and the Act of 11 March 1990. This is reflected in the first democratic Constitution of the State of 1922 and is consolidated in the current Constitution. In view of the historically consistent obligation to respect innate human rights, it can be stated that the protection of these rights has become a particular metanorm, expressing the essence of the Constitution as a social contract and supreme law. This is especially evident from the doctrine formulated by the Constitution Court regarding the constitutionality of constitutional amendments in the rulings of 24 January 2014 and 11 July. In its ruling of 11 July 2014, the Constitutional Court held that it is not permitted to adopt any such constitutional amendments that would destroy the innate nature of human rights and freedoms, democracy, or the independence of the state. Consolidating the recognition of the innate nature of human rights, Article 18 of the Constitution formally belongs to those provisions of the Constitution that are subject to the general constitutional amendment procedure. However, taking into account an intrinsic relationship between democracy and respect for innate human rights, the Constitutional Court ranked the innate nature of human rights and freedoms, along with the independence of the state and democracy, as unamendable or “eternal” constitutional provisions. Thus, the innate nature of human rights, as a universal value constituting one of the fundamental elements of the Lithuanian constitutional identity, is under the highest-level constitutional protection. The second aspect revealing the interrelationship between the constitutional identity and human rights protection is the influence of other elements of the constitutional identity on the constitutional standards of human rights protection. In the formation of the official doctrine on human rights protection, the Constitutional Court places considerable importance on the idea of a democratic state under the rule of law. Other elements of the Lithuanian constitutional identity, in particular the principle of respect for international law and the principle of the geopolitical orientation of the state, are also particularly significant for the constitutional protection of human rights. The principle of respect for international law (pacta sunt servanda), as entrenched in Article 135(1) of the Constitution, implies the obligation of the State of Lithuania to comply with the norms of international treaties and customary international law, including the area of human rights. The principle of the geopolitical orientation of the state likewise guides towards openness to international human rights obligations. This principle implies Lithuania’s membership in the European Union and NATO, as well as the necessity to fulfil the related international obligations. The principle of geopolitical orientation, which is underpinned by common values shared by Lithuania with democratic Western states, similarly provides a value-based guidance in assuming international obligations and presumes the necessity to pay regard to the European standards of human rights protection and tendencies in their development. In this context, special importance also falls on the principle of an open civil society, which means that Lithuanian society is open to the international community and tendencies in the development of international law. The self-isolation of the state or disregard for international standards of human rights protection would be incompatible with the principle of an open civil society.

The paper examines the notion of constitutional identity in Italy, with the aim to question whether the highest constitutional authorities of the Italian state have identified a core or fundamental elements of the Constitution which define its individuality. By analyzing the words and deeds of the President of the Republic and the case law of the Constitutional Court the paper claims that these two supreme constitutional authorities always refused to identify a set of constitutional values which cannot be touched by the European Union (EU). On the contrary, the paper suggests that both the President of the Republic and the Constitutional Court have endeavoured to emphasize the axiological overlap between the Italian Constitution and the project of European integration, considering Italy’s membership to the EU as the best way to fulfill the Constitution’s mandate. As the paper maintains, the same approach is visible in the recent Taricco judgment of the Italian Constitutional Court: while in this reference to the European Court of Justice (ECJ) the Constitutional Court mentioned for the first time ever the words ‘constitutional identity’, its ruling was mostly grounded on the notion of common constitutional traditions. The Constitutional Court invited the ECJ to revisit a previous ruling, emphasizing how that substantially conflicted not only with Italy’s Constitution, but also with the principles enshrined in the EU Charter of Fundamental Rights. As the paper suggests, therefore, the Italian case offers an example of a founding EU member state where no identity narrative has been developed as a defense against the EU.

Constitutional identity, as enshrined in Article 4(2) TEU might theoretically open up the possibility for EU Member States to refuse fulfilling certain obligations under EU law by referencing certain, as if yet not clearly defined elements of constitutional identity. Member States’ constitutional identity, which is to be respected by the EU does not appear in positive law. Having regard to multilevel constitutionalism, it may be assumed that national constitutional identity will be elaborated in dialogues between national (constitutional) courts and the Court of Justice of the European Union. Based on previous practice however, the national and European interpretations of identity differ significantly. To achieve necessary convergence, the Court of Justice and national courts must cooperate in interpreting the concept of constitutional identity. This raises the necessity of examining whether the procedural prerequisites of this cooperation are given in national and EU public law. The questions to be examined are 1) whether the preliminary ruling procedure has already been used in identity-related cases, 2) what the position of constitutional courts/supreme courts (courts engaged in constitutional interpretation) is regarding the preliminary ruling procedure and 3) whether this may be considered the appropriate procedure when applying Article 4(2) TEU or would it require modification?

The article highlights recent trends in the case law of the Latvian Constitutional Court with regard to the response to COVID-19, empowerment of marginalised groups, and protection of democracy. These developments emphasise the Court's role in upholding the rule of law, promoting equality, and safeguarding democracy in Latvia. During the pandemic, its rulings shaped the legal framework for managing the crisis while balancing public health against individuals’ rights. Analysis shows that the decisions on emergency measures, restrictions to fundamental rights, and executive powers ensured government actions' legality and proportionality, with the Court demonstrating commitment to empowering marginalised groups through case law addressing gender equality, LGBTQ+ rights, minority rights, and disability-related rights. The paper shows how, by providing legal protection and promoting inclusivity, the Court advanced the rights of marginalised communities while, additionally, protecting democracy remained a paramount concern for the institution, whereby it safeguarded the Latvian constitutional order, separation of powers, independence of the judiciary, and the rule of law. The discussion illustrates how vigilant scrutiny of legislation and government actions can preserve democratic values, uphold the integrity of institutions, and ensure accountability.

National Identity, Constitutional Identity, and Sovereignty in the EU This article challenges the assumption, widespread in European constitutional discourse, that ‘national identity’ and ‘constitutional identity’ can be used interchangeably. First, this essay demonstrates that the conflation of the two terms lacks grounding in a sound theory of legal interpretation. Second, it submits that the requirements of respect for national and constitutional identity, as articulated in the EU Treaty and in the case law of certain constitutional courts, respectively, rest on different normative foundations: fundamental principles of political morality versus a claim to State sovereignty. Third, it is argued that the Treaty-makers had good reasons for writing into the EU Treaty a requirement of respect for the Member States’ national identities rather than the States’ sovereignty, or their constitutional identity.

This article concerns constitutional problems related to the implementation of EU directives seen from both the legal and comparative perspectives. The directives are a source of law which share a number of characteristic features that significantly affect and determine the specificity of Member States’ constitutional review of the directives as well as the legal acts that implement them. The review of the constitutionality of EU directives is carried out in accordance with the provisions of national implementing acts. Member States’ constitutional courts adopt two basic positions in this respect. The first position (adopted by, inter alia, the French Constitutional Council and German Federal Constitutional Court) is based on the assumption of a partial “constitutional immunity” of the act implementing the directive, which results in only a partial control of the constitutionality of the implementing acts, i.e. the acts of national law implementing such directives. The second position, (adopted, explicitly or implicitly by, inter alia, the Austrian Federal Constitutional Court, Czech Constitutional Court, Polish Constitutional Court, Romanian Constitutional Court and Slovak Constitutional Court) concerns the admissibility of a full review of the implementing acts. This leads to the admissibility of an indirect review of the content of the directive if the Court examines the provision as identical in terms of content with an act of EU law. Another issue is related to the application of the EU directives as indirect yardsticks of review. The French Constitutional Council case-law on review of the proper implementation of EU directives represents the canon in this regard. Nonetheless, interesting case studies of further uses of EU directives as indirect yardsticks of review can be found in the case law of other constitutional courts, such as the Belgian Constitutional Court or Spanish Constitutional Court. The research presented in this paper is based on the comparative method. The scope of the analysis covers case law of the constitutional courts of both old and new Member States. It also includes a presentation of recent jurisprudential developments, focusing on the constitutional case-law regarding the Data Retention Directive and the Directive on Combating Terrorism.

In the context of the discourse on constitutional identities, national constitutional courts enter into various forms of dialogue with the Court of Justice of the EU. After having engaged for an extended period of time in exclusively indirect dialogues that were more or less successful and were realised through their own practices, national constitutional courts started making use of the possibility offered to them pursuant to Article 267 of the Treaty on the Functioning of the European Union, i.e., the preliminary ruling procedure. The paper aims to prove that the dialogues which constitutional courts engage in with the Court of Justice of the EU are the most successful forms of their communication. For that purpose the paper compares these dialogues with indirect forms of communication between constitutional courts and the Court of Justice of the EU. It is in this context that the paper, following introductory considerations in the second part, considers the concept of constitutional identity from the viewpoint of the Court of Justice of the EU and the viewpoint of national constitutional courts. The third part of the paper analyses different forms of indirect dialogue between constitutional courts and the Court of Justice of the EU and draws conclusions about their effectiveness. The fourth part analyses particular procedures instituted before the Court of Justice of the EU by constitutional courts and points out the pros and cons of these procedures. Finally, the paper concludes that the procedures instituted by national constitutional courts pursuant to Article 267 of the Treaty on the Functioning of the European Union are the most direct and the most efficient forms of their communication with this Court.